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Brass Tacks

Brass Tacks

"Do what has to be done" is the motto of the investigative arm of the
US military. But when the understaffed institution regularly loses
evidence and delays autopsies, it does too little. When it attempts to
protect evidence by detaining witnesses, it does too much. A look at
the inherently flawed investigations of detainees.

December 8, 2005

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On June 3, 2003, two months after Pfc. Jessica Lynch was taken prisoner in Iraq, a suspect in the attack on her convoy, Nagem Sadoon Hatab, 52, was detained by US forces. He was taken to a detention facility near Nasiriyah, where he was beaten and strangled to death. Two Marines, Sgt. Gary Pittman, 41, and Maj. Clarke Paulus, 37, eventually faced criminal charges at highly publicized courts-martial in Camp Pendleton, California, in 2004.

It seemed like an easy case to prosecute–complete with witnesses to the brutal beatings. Ultimately, though, the most serious charges were dropped. In September 2004 Pittman was convicted of dereliction of duty and assault, sentenced to sixty days of hard labor and reduced in rank; two months later Paulus was found guilty of dereliction of duty and maltreatment and dismissed from the Marines.

What happened?

Interviews with people involved in the courts-martial, and military documents recently obtained by the American Civil Liberties Union through the Freedom of Information Act, shed some light on the proceedings. Pathologist Lieut. Col. Kathleen Ingwersen ruled Hatab’s death a homicide and placed blood, urine and tissue samples in a cooler to be shipped back to the Armed Forces Medical Examiner’s Forensic Toxicology Laboratory in Washington. But the cooler got left on a tarmac in 100-plus-degree heat, explains Marine Col. William Gallo, an assistant US attorney in San Diego, who acted as an investigating officer from December 2003 to February 2004.

“The cooler exploded,” he says.

Then Hatab’s fractured hyoid bone, a key piece of evidence, was shipped to Landstuhl, Germany, and his rib cage was sent to Washington. Or maybe it was the other way around, says Hina Shamsi, a senior counsel with Human Rights First, an advocacy organization based in New York and Washington, and co-author of an upcoming report that examines the cases of Hatab and close to 100 other detainees who have died in US custody in the “war on terror.” In the end, the evidence was irrevocably damaged.

“You send one body part to one country and another to another country, and of course you can’t prosecute,” says Deborah Pearlstein, director of Human Rights First’s US Law and Security Program and co-author of the upcoming report on detainees who died. “The evidence is destroyed through what looks like incompetence.”

It’s not just the Hatab investigation that was botched, says Pearlstein. There has been a pattern of disregard for the niceties of evidence collection, storage and processing–as well as the handling of witnesses–in dozens of cases in which detainees have died in US custody. And those are just the on-the-ground investigations undertaken by the military in the wake of detainee deaths or allegations of torture and mistreatment.

There have also been twelve large-scale internal military investigations, including the much-publicized reports of Maj. Gen. Antonio Taguba on the Army and Maj. Gen. George Fay and Lieut. Gen. Anthony Jones on military intelligence. The reports, which include testimony from hundreds of military personnel and run into thousands of pages, were prompted by public outcry and Congressional inquiries into the abuse of detainees. And yet the reports have been inadequate, flawed and, in many cases, overly protective of the military personnel they purport to investigate, say human rights activists and legal experts.

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The flaws in the investigations on the ground and in the sweeping reports about the military branches reflect a larger problem: namely, the Bush Administration has done a poor job of sorting out what has happened to detainees at Abu Ghraib and in other US-run detention facilities in Iraq, Afghanistan and Guantánamo–despite its public statements to the contrary.

Part of the problem, at least with the on-the-ground investigations, may lie within the Army Criminal Investigation Command. The military command was founded in 1918 as the Criminal Investigation Division and is still known by its original acronym, CID. Its motto, as presented on its website, is, DO WHAT HAS TO BE DONE. Some observers are skeptical about the billing.

“When the Army CID set out to really investigate, they can,” says John Sifton, a Human Rights Watch researcher in New York. “They have the tools to look at forensic evidence and so on. But what we see are inconsistencies. Sometimes they push hard. Sometimes they don’t.”

The more rigorous investigations into detainee abuse, he says, tend to happen after human rights activists and journalists have released details of the abuse to the public. As Sifton explains, nobody seemed to care when Capt. Ian Fishback of the Army’s 82nd Airborne Division started talking about how he’d seen military personnel inflict daily beatings on detainees, smear chemicals on their skin and stack them in human pyramids at Camp Mercury, a forward operating base in Iraq, in 2003 and 2004.

For seventeen months Fishback approached military superiors and tried to talk about the abuse and ask for their help in sorting out international laws that protect detainees–and got nowhere. It wasn’t until he spoke with human rights activists and members of Congress that the military snapped to attention.

Even then, CID agents had a troubling reaction.

“What did they investigate first?” asks Kenneth Roth, executive director of Human Rights Watch, at a discussion on “America and the Rules of War: What Next After Abu Ghraib?” sponsored by the World Affairs Council of Washington on October 27. “What they wanted from Captain Fishback was the names of the two sergeants who had spoken to us and what his relationship was with us.”

Gary Solis, visiting director of West Point’s Law of War program, had the same concerns about the investigation into the allegations of Fishback, a West Point graduate who had cited Solis’s work (though not by name) in Congressional testimony. Solis was interviewed by two investigators, including a CID agent, after Fishback spoke out publicly. “Perhaps somebody else is looking into Fishback’s allegations,” says Solis. “But the questions asked of me were ones that looked into his actions.”

Ultimately, the Human Rights Watch report, based on Fishback’s revelations, led to a military investigation, Congressional hearings and an amendment proposed by Senator John McCain that would clarify rules on interrogations.

A Defense Department spokesman, Lieut. Col. Mark Ballesteros, says all credible allegations of detainee abuse–whether they’re from military officers like Fishback or from detainees themselves–are investigated.

“We’ve conducted more than 500 investigations into detainee abuse since 2002, and approximately 250 of the cases have resulted in some form of punishment, either judicial or non-judicial,” Ballesteros says. “We have first-class investigators…. And the CID has one of the highest solve rates in the nation for a federal law-enforcement agency.”

Ballesteros says he and his colleagues are proud of the investigations, especially considering the working conditions in Baghdad. “The investigations are done in austere and sometimes dangerous environments,” he explains. “Some of the agents have literally been shot at during the course of the investigations.”

Given these conditions, it’s not surprising that record-keeping has been, at times, sub-par. Files at Abu Ghraib have been lost, says an army officer stationed in Baghdad who isn’t authorized to speak on the subject and so requested anonymity. File cabinets were in short supply when detainees first arrived at Abu Ghraib, he says, and background information was kept in cardboard boxes and on a dry-erase board–with predictable results. “Some interrogation-related information was recorded on a whiteboard which was periodically erased,” write General Fay and General Jones in their report.

The consequences are unfortunate. If a CID agent can’t find the file on a detainee with an abuse complaint, the case is closed, according to a source familiar with CID operations in Iraq. To make matters worse, the military is notoriously understaffed. The Army officer who requested anonymity says last year there were no pathologists authorized to do autopsies on detainees who died in US-run detention facilities in Iraq. So military officers learned to adjust. “They’d hold remains until they had enough for a medical examiner to come over from Dover [Maryland],” he explains. “It might take a few weeks or a month.”

The investigators, too, are overworked. Ballesteros won’t say how many CID agents are sent to Iraq–“for security reasons,” he explains. But two sources familiar with CID operations say there are only three agents in the country–with more than 100 abuse cases to investigate.

In many cases these agents do their best, even employing a technique known as a “CID hold,” which means keeping someone in detention who may have knowledge about an abuse case rather than letting them go and having to track them down later in war-torn Iraq. “Somebody can be kept in prison merely because they witnessed somebody else being tortured,” explains one person familiar with CID operations. “It’s shocking.”

And then there is the “OGA,” or “Other Government Agency” referred to in military reports.

“You cannot have an overall sense of the issues without addressing CIA personnel,” says Eugene Fidell, a former military prosecutor, defense counsel for the Coast Guard and president of a Washington-based nonprofit called the National Institute of Military Justice (NIMJ), which helps provide information on military justice procedures and statutes for the public and legal professionals. “To my knowledge, that hasn’t been done. Or if it has been done, it’s been kept a dark secret.”

It is a secret at least partially uncovered in Dana Priest’s recent Washington Post exposé about CIA “black sites” later revealed to be in Poland and Romania–though details of the CIA’s activities are still murky. As Jane Mayer wrote in The New Yorker, “Senior Administration officials have led a fierce, and increasingly visible, fight to protect the CIA’s classified interrogation protocol.”

Despite these obstacles, a blizzard of information has spewed forth from the Pentagon. Ballesteros, a boyish-looking 41-year-old officer with dark hair and bloodshot eyes who graduated from the University of Kansas journalism school this past May, says he spent the first couple of weeks on his job simply reading the military reports on detainee abuse.

That, say experts, is part of the problem.

“There’s a danger of ‘Abu Ghraib fatigue’ setting in,” says Eugene Fidell of the NIMJ. “Whether this is intentional or not is beside the point. The point is the public has not been served by the plethora of investigations.”

Scott Horton, a partner with the New York law firm Patterson, Belknap, Webb & Tyler who teaches a class on humanitarian law at Columbia University, has analyzed many of the military reports while sitting in his Avenue of the Americas office, surrounded by a Russian Orthodox icon, the German magazine Stern and a poster of the 1975 Nobel Peace Prize acceptance speech by his client, the late Andrei Sakharov. Glancing at the poster, Horton says, “I never thought I’d end up spending my time with torture cases in the US.”

Horton says most of the reports are nothing more than “whitewashing” and “scapegoating.” The Fay report, Horton says, may have been hampered by its author’s scant credentials for the job: A reservist and executive vice president of Chubb & Son, a division of Federal Insurance Companies, he had been a financial supporter of the New Jersey Republican Party. For the report, he visited US bases in Germany in late spring 2004.

“He would say, ‘Now, if anyone saw anything and failed to intervene, they can be charged with a crime. Did anyone see anything and fail to intervene?'” says Horton, who has spoken with four military officers who have described the meetings.

“They’d all say, ‘No, Sir!'”

Elizabeth Hillman, an associate professor at Rutgers School of Law and author of Defending America: Military Culture and the Cold War Court-Martial, says the investigations are inherently flawed. “There is a quagmire of different interests in the pantheon of abusers–interrogators, commanders, reserve forces, contractors. That complicates the nature of the criminal investigations,” she explains. “The Army’s trying to save face even as it’s trying to investigate wrongdoers.”

Or, as one 52-year-old former CID agent who asked not to be identified (“I have enough going on in my life right now”) says, agents have become increasingly aligned with the Army. “It’s useful not to be too chummy with the people you have to investigate,” he says.

And, as assistant US attorney William Gallo explains, it’s hard to get people to testify against one another during wartime. “All the potential witnesses were comrades-in-arms with the accused, and to get any evidence is difficult,” he says. “It’s hard to get someone to say, ‘My best friend killed this guy’–particularly when he’s believed to be an insurgent.”

Was justice served in the Hatab case?

“The investigation was conducted in a combat zone and understandably mistakes are going to be made,” says Gallo. “Had there not been mistakes–if the cooler had not exploded on the tarmac, for example–maybe the outcome would have been different. But yes, I think justice was done because the system worked despite the mistakes.”

Whether it’s because of missing files, lack of evidence or simply inertia, though, few complaints lead to charges. Many more end up like the case of the detainee at Abu Ghraib who describes how, on the night of April 27, 2004, he was pulled from his home, hooded and placed in the back of a Stryker vehicle. At that point, he says, an officer “put his hands around my neck one minutes and he pressed hard and I felt like I was dying from choking.” He describes three days and nights in Mosul when he was forced to hold his hands on his head for six hours, placed in stress positions and repeatedly doused with icy water.

“Do you wish to add anything to this statement?” asks an investigator.

“Yes,” the detainee answers. “I need justice and my rights.”

An investigation was started on July 27, 2004, and ended with a September 23, 2004, CID memo that states: “Investigation did not develop sufficient evidence to prove or disprove Mr. [blacked out] allegation.”

Case closed.

Tara McKelveyTara McKelvey, a 2011 Guggenheim fellow, is the author of Monstering: Inside America’s Policy of Secret Interrogations and Torture in the Terror War. She writes frequently for The New York Times Book Review.